Overview of Impact on Policing of Canadian Charter of Rights and Freedoms

 The Canadian Constitution Act of 1982 was a landmark in history. It enshrined the Charter of Rights and Freedoms in constitution ensuring that Canadian rights and freedoms are respected and honoured at all levels of government, in addition to the laws they create and in the programs and services they provide for Canadians. Before the Charter was established, Canada was aligned more with the crime control model that places emphasis on reducing crime in society through the use of increased police and governmental powers. However, since the creation of the Charter, today, policing in Canada continues to be shaped by charter provisions which limit the discretionary powers of officers. Individual rights were raised to constitutional status, meaning that they now enjoy a higher order of priority in legal ranking. The entrenchment of individual rights and freedoms, especially rights against unreasonable search and seizure and arbitrary detention, has placed significant limits on police powers, while enforcing due process. This paper will discuss how the Charter of Rights and Freedoms has had a positive impact on policing in Canada since it limits the powers of officers, while guaranteeing all individuals rights and freedoms, regardless of the crimes they are accused of. Arguably, the impact of the Canadian Charter of Rights and Freedoms has changed the way offences are prosecuted, as well as reshaped the way due process is valued in society.

Since the establishment of the Charter of Rights and Freedoms, policing in Canada has rapidly changed and continues to be shaped by the Charter provisions which limit the power of the police. More specifically, sections 8 to 9 under the Charter guarantees the protection of an individual's autonomy and personal legal rights from actions of the Canadian government. Police officers do not have the power to lawfully search individuals without a warrant, or detain someone without reasonable grounds. Officers can only do so if they have been given a search warrant signed legally by a judge. For instance, in the case of R. v. Simpson, [1995], police officers observed two individuals leaving a suspected drug house in a vehicle. The officers reacted and immediately pulled the vehicle over. Upon questioning, the officer noticed a lump in the occupant’s front pocket and asked the occupant to remove the object in which he discovered cocaine. The accused was charged with cocaine possession for the purpose of trafficking, however, the defendant argued that he was unlawfully searched without reasonable grounds and arbitrarily detained. The Ontario Court of Appeal ruled out that the police cannot arrest someone without probable cause, thus dropping all charges against the accused. More importantly in this case, it became abundantly clear that the police abused their power and violated the defendant’s charter of rights and freedoms (section 8 & 9) by not establishing reasonable or probable grounds to execute the search and make the arrest. The Charter forces the police to act within the law, placing significant limits on their powers when it comes to interfering with individual liberties.

Furthermore, another important impact the Charter of Rights and Freedoms has on policing in Canada, is the guarantee of individual rights and freedoms, regardless of the accused crime. The Charter has been designed to protect each individual and treat them with humanity and dignity no matter how severe, or serious the crime they are accused of may be. The Charter ensures that any restrictions on individual liberties should be as minimal as possible, where all are treated equally, regardless of their accused crime. Punishments cannot be cruel and unusual, and sentences for crimes must reflect the specific circumstances of each individual case. More specifically, under section 11(d) of the Charter, it states that the accused is innocent until proven guilty in a fair and public hearing by an independent and impartial tribunal; guarantee individuals fundamental rights regardless of how heinous or atrocious the crime may be. For example, the article titled “Luka Magnotta pleads not guilty in body parts case,” published by CTV news explains Magnotta who was the key suspect in the grisly killing and dismemberment of Jun Lin, a 33-year-old Chinese national pleaded not guilty for the murder. Magnotta was subsequently arrested and pleaded not guilty to five charges, including first-degree murder. Despite the horrendous crime Magnotta committed, he was treated fairly and equally under the protection of the charter, allowing him to remain silent and exercise his right to counsel. The Charter aims to protect Canadians when dealing with the justice system. They ensure that individuals who are involved in proceedings are treated fairly, especially those charged with a serious criminal offences.

The trend toward adoption of a due process model of justice in Canada was reflected in and reinforced by the creation of the Canadian Charter of Rights and Freedoms in 1982. More broadly, the Charter has introduced a newly potent vocabulary for challenging the substantive limits of the criminal law. Due Process is a key legal requirement in which the legal rights and fundamental freedoms of each individual must be respected. Due process balances the power of law of the land and safeguards an accused person’s right throughout the criminal process. In essence, the Charter has reshaped due process and forced police authorities to be more accountable. The due process questions the accuracy and truthfulness of police investigations and how they are conducted, finding them to be “coercive, hindering, and degrading.” As a result, policing performance has adequately changed, when conducting criminal procedures, the police must first gather evidence and attempt to determine who is exactly responsible for the offence; they may then arrest and charge that individual. The Charter, the Criminal code and Common law all place limits on investigatory powers of police and safeguard the rights of individuals with whom police interact. Failure on the part of police to abide by the law in this regard may result in evidence against an accused being excluded in a criminal trial. Furthermore, another important aspect on how due process has influenced policing to be held accountable is that it is sole duty of the police officer comply whenever they are dealing with persons whom they detain. More specifically, rights under section 10 of the Charter ensure that the accused have a chance to challenge the lawfulness of their arrest. It is the duty of the police officers to provide information to that individual of the reason for the arrest as well as allowing them the right to a lawyer to immediately get legal advice regarding their situation. Under no circumstances, can the police use any source of trickery or obtain information from the accused by using coercion techniques, threats or even violence. For example, in the case of R. v. Brydges, [1990] the appellant, who resides in Alberta was arrested in relation to a murder in Edmonton. The accused was informed of his right to retain and instruct counsel. Upon being questioned, the accused asked the officer if they had legal aid in the province of Manitoba because he did not have the money to afford an attorney. The officer responded “I imagine they have a Legal Aid system in Manitoba” and questioned the accused if there was a specific reason for him wanting to talk to a lawyer. The accused replied “not right now, no.” William Bridges declined to speak to a lawyer due to the fact that he was under the impression that he did not have money to afford one, which prevented him from exercising his due process rights. The police failed to properly inform the accused their right as well as provide sufficient information on obtaining advice from duty counsel.

In conclusion, the Charter of rights and freedoms become a part of the Canadian national identity and has become a big patriotic symbol for the country. Ensuring Canadian rights and freedoms are respected and honoured at all levels of government. But more importantly today, policing in Canada continues to be shaped by Charter provisions which limit the discretionary powers of officers, and safeguarding the rights of individuals with whom the police interact. Arguably, the entrenchment of the Charter has drastically changed the changed the way offences are prosecuted, as well as reshaped the way due process is valued in society, ensuring that police authorities will be held accountable if they are conducting criminal procedure in an unlawful manner. Guaranteeing individuals that police officers do not do not trample upon human rights or violate regulations governing police discipline and responsibilities in the course of police duty.